Ashley v. Home Indemnity Co. , 1985 Tex. App. LEXIS 6175 ( 1985 )

REYNOLDS, Chief Justice,

dissenting.

I respectfully dissent. In my view, the claimants failed to evidence support for the jury’s verdict that the worker’s fatal injury was received in the course of his employment. I, therefore, would affirm the trial court’s take-nothing judgment rendered notwithstanding the jury’s verdict.

James Douglas Ashley, the deceased worker, was employed as a truck driver by Skaggs Supercenters, Inc. His primary responsibility was to haul merchandise in Skaggs’ truck from Skaggs’ Richardson, Texas, terminal to Albuquerque, New Mexico, from whence he usually would travel to Liberal, Kansas, pick up a load of beef and return with it to Richardson. The parties are agreed that Ashley’s normal highway route from Richardson to Albuquerque would take him through Amarillo, Texas, the approximate mid-point about 360 miles east of Albuquerque.

At approximately 5 p.m. on 29 June 1979, Ashley departed the Richardson terminal, driving a Skaggs truck carrying produce and bound for Albuquerque. After leaving the terminal, Ashley never contacted his dispatcher or his wife. The next report of his whereabouts came from the deposition testimony of Joyce Hughey who, accompanied by her husband, Charles Hughey, was driving a truck southeasterly from Amarillo on their way from Colorado to Lone Star, Texas. Mrs. Hughey first saw the truck driven by Ashley as it was coming up behind the truck she was driving southeasterly on U.S. Highway 287 about a mile east of Amarillo.

The two trucks traveled southeasterly along the highway, taking turns passing each other, for some 80 miles. Mr. Hu-ghey, who had been asleep, noticed the truck Ashley was operating some 400 yards ahead about thirty minutes before the accident. Both the Hugheys observed that Ashley was driving straight at a steady speed within the speed limit and never saw anything thrown from Ashley’s truck.

About 12:30 a.m. on 30 June 1979 at a point 2.9 miles west of Memphis, Texas, and some 80 miles southeast of Amarillo, Ashley’s truck left the road and overturned. Ashley was killed. A blood sample analyzed by the Department of Public Safety toxicology laboratory in Austin revealed that at the time of his death, Ashley had a blood alcohol concentration of .24% by weight, which in the opinion of the forensic toxicologist would make a person “blind staggering drunk,” but no intoxicating liquor or containers for it were found at the scene of the accident.

The evidence adduced reveals that Ashley had napped only an hour or so after completing a prior delivery, and was tired, before he began his fatal trip. Skaggs’ standard procedure required a driver to, and Ashley was said to be the type of a driver who would, call his dispatcher to report a problem and ask for instructions, even though delay was not necessarily reported by all drivers. There is no evidence of probative force to show, and at most the mere surmise or speculation of, a business or personal reason for Ashley to turn at mid-point from his course of travel to his assigned destination and retrace the route he apparently had traveled for 80 miles until the accident occurred.

When The Home Indemnity Company, the compensation insurance carrier for Skaggs, refused to pay the claim for death benefits under the workers’ compensation statute, Sandra Judy Glenn Ashley, the surviving widow, individually and as next friend of the Ashleys’ minor children, brought the suit underlying this appeal. The insurance carrier answered, alleging that workers’ compensation benefits were not recoverable because Ashley was not in the course and scope of his employment at the time of his death, and that he was at the time in a state of intoxication.

A jury returned its verdict, answering, in response to the single special issue and instructions submitted, that Ashley received an injury in the course of his employment by Skaggs. Mrs. Ashley and the children moved for judgment on the verdict; the insurance carrier moved for judgment notwithstanding the verdict or, alternatively, for a new trial submitting that there is no evidence to support the jury’s answer, that the evidence conclusively shows Ashley did not receive an injury in the course of his employment, and that the evidence is factually insufficient to support the jury’s answer.

Hearing the motions, the trial court denied Mrs. Ashley’s and the children’s motion and granted the insurance carrier’s motion for judgment notwithstanding the verdict. The court then rendered judgment decreeing that Mrs. Ashley and the children take nothing.

Appealing from the judgment, Mrs. Ashley and the children charge the court with error in granting the insurance carrier’s motion for the reason that there is sufficient evidence to support the jury’s verdict. The insurance carrier commendably concedes that the issue of intoxication was a fact issue decided adverse to its contention and that it will not pursue the matter; however, it urges that Mrs. Ashley failed to carry her burden to prove that Ashley died while acting within the course and scope of his employment.

As defined in the Workers’ Compensation Act, an “injury sustained in the course of employment” is one of the kind and character having to do with and originating in the work, business, trade or profession of the employer and is sustained while the worker is engaged in or about the furtherance of his employer’s affairs or business, whether upon the employer’s premises or elsewhere. Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (Vernon 1967); Texas General Indemnity Company v. Bottom, 365 S.W.2d 350, 352-54 (Tex.1963). Generally, an injury received by a worker while traveling on a public highway is not incurred in the course of employment, Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 242 (1942); however, if the injury is sustained while the worker is traveling on a highway in transportation furnished as a part of his contract of employment, or when the worker is directed in his employment to proceed from one place to another, the injury is sustained in the course of employment. Tex.Rev.Civ.Stat.Ann. art. 8309, § 1b (Vernon 1967); Safety Casualty Co. v. Wright, supra. The claimant of workers’ compensation benefits has the burden to establish that the injury was sustained in the course of employment. Scott v. Millers Mutual Fire Insurance Co. of Texas, 524 S.W.2d 285, 288 (Tex.1975); Texas General Indemnity Company v. Bottom, supra.

Applying these principles to the undisputed facts, it is certain that when Ashley, as directed, left the terminal in transportation furnished by Skaggs and traveled the highway toward Albuquerque in furtherance of Skaggs’ business, he was in the course and scope of his employment. Yet, at the approximate mid-point of travel to his directed destination, he inexplicably reversed his course and traveled in the direction he had come for some 80 miles until he sustained his fatal injury. The question, then, is: What is the effect of Ashley’s unexplained 80-mile reversal of his directed course of travel?

Mrs. Ashley and the children contend that since there is no evidence that Ashley’s course reversal was for the purpose of a personal errand, the jury could conclude that he still was in his course and scope of employment at the time of his death. In so contending, the insurance carrier asserts, Mrs. Ashley and the children ignore their burden to establish that Ashley’s fatal injury was sustained in the course of his employment; and, since they did not produce any evidence of a business reason for Ashley’s 80-mile reverse deviation from his assigned route, they failed to carry their burden of proving that he died while acting within the course and scope of his employment.

I, agreeable to the trial court’s decision, would hold that Mrs. Ashley and the children failed as a matter of law to discharge their burden to establish that Ashley’s fatal injury was sustained in the course of his employment. Although Ashley’s operation of the truck to Amarillo was within the course and scope of his employment, his unexplained 80-mile reversal of course to his death raised the issue whether he was at that time in the course and scope of his employment by Skaggs. This obtains because the evidence reveals that Ashley was not directed in his employment to retrace his route upon reaching Amarillo, and that his injury did not occur at a place he should have been on the normal route and direction of travel in the furtherance of Skaggs’ business of having the produce he was hauling delivered to Albuquerque.

The reversal-of-course evidence rebutted any presumption of course of employment at the time of Ashley’s fatal injury, if the presumption could arise in this case, for that evidence shows his injury was sustained at a place where he properly would not be after reaching Amarillo under his direction to proceed from the Richardson terminal to Albuquerque. Cf. Scott v. Millers Mutual Fire Insurance Co. of Texas, supra, (reciting case holdings that where an employee is found dead at a place where his duties require him to be, or where he might properly have been in the performance of his duties, during the hours of his work, and there is an absence of evidence that he was not engaged in his master’s business, there is a presumption that the accident arose out of and in the course of his employment within the meaning of the compensation statute; and, also, recognizing that the presumption is rebuttable). Then, to discharge their burden of proof, Mrs. Ashley and the children had to produce evidence to support the jury’s finding that Ashley received an injury in the course of his employment by Skaggs, id., i.e., that his injury was of a kind and character that had to do with and originated in the work, business, trade or profession of his employer, Skaggs, and was received while he was engaged in or about the furtherance of Skaggs’ affairs or business. Texas General Indemnity Company v. Bottom, supra, at 354.

Mrs. Ashley and the children concede that “there is no evidence why Ashley reversed course.” It follows that under the circumstances recorded, they did not produce any evidence of probative force to show that at the time of Ashley’s death, he was in the course of his employment; and, therefore, the trial court’s granting of the insurance carrier’s motion for judgment notwithstanding the jury’s verdict was correct. Id.

Accordingly, I would affirm the trial court’s take-nothing judgment.